Temporarily insane: Pathologising cultural difference in American criminal courts

Abstract

In recent years, American criminal courts have seen the rise of the culture defence strategy or the argument that the defendant's cultural background should excuse crime, mitigate responsibility or reduce the penalty for criminal behaviour. This paper argues that the rise and success of this strategy in practice reflects not just multiculturalism - as earlier studies contend - but the cultural impulse known as the 'therapeutic ethic'. Using the culture defence archive as a valuable and underused sociological resource, it examines the extent to which this legal strategy embodies the therapeutic ethic. Through an analysis of actual cases, the paper traces the medicalisation of culture in courts by which cultural differences are consistently converted into psychological disorders in order to diminish criminal responsibility. It suggests that culture defence must be seen not only against changes in criminal law - such as the increase in legal excuses that rely on the therapeutic ethic - but as an instance of how 'other' cultures may be pathologised in multicultural legal arenas.